On December 4, 1984, more than 2500 people were killed and over 200,000
others injured in Bhopal, India when a highly toxic pesticide was released
from a storage tank at a Union Carbide facility.[1] Nine months later, more
than 150 individuals required medical attention when another toxic chemical
used to make pesticides, aldicarb oximine, was released by a Union Carbide
facility in Institute, West Virginia.[2] In Bhopal, Union Carbide failed to
seriously consider emergency prevention measures in operating its pesticide
facility. Additionally, its emergency response planning and resources were
clearly inadequate.[3] In West Virginia, Union Carbide's officials failed
to notify local authorities about the release of the pesticide-laden gas
because they did not believe the gas would leave the plant's perimeter.[4]

In both accidents local authorities were confused about what was happening,
what substance was involved, and how to protect citizens.[5] No
comprehensive national program existed to provide local citizens with
important information on hazardous chemicals in their communities, or
establish emergency planning and response requirements, despite the
magnitude of the toxic chemical releases. In 1985 the Environmental
Protection Agency (EPA) determined that during the previous five years more
than 6900 incidents involving the release of toxic chemicals had occurred
in the United States, causing 135 deaths and nearly 1500 injuries.[6]

Congress sought to remedy this shortcoming[7] through the passage of the
Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA).[8] This
Congressional action was influenced by two things: (1) a strong grassroots
movement which had previously resulted in numerous state and local laws
meant to provide workers and communities with information on chemical
hazards; and (2) the lack of information on toxic waste generation by
factories. But it was the Bhopal tragedy which finally pushed Congress to
attempt to alleviate the lack of comprehensive emergency response planning
and the scarcity of information on dangerous chemical releases around the
nation.[9] Prior to Bhopal, Congress had been concerned primarily with
reworking the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA),[10] commonly called the "Superfund" law,
which was propelled into being by another famous toxic chemical tragedy,
Love Canal.[11] Bhopal convinced Congress, in the midst of its
consideration of the reauthorizaton of CERCLA, to promulgate statutory
provisions addressing the concern about toxic chemical releases and
accidents.

Originally, EPCRA was introduced as a separate bill, but Congress inserted
it into the Superfund Amendments and Reauthorization Act of 1986 (SARA) as
Title III.[12] SARA was intended to amend the original Superfund Act.[13]
EPCRA, however, was meant to be a free-standing law and not part of CERCLA
or its amend ments.[14] Rather, EPCRA was enacted to "establish programs to
provide the public with important information on the hazardous chemicals in
their communities, [as well as to] establish emergency planning and
notification requirements which would protect the public in the event of a
release of hazardous chemicals."[15]

As its name implies, EPCRA has two major functions: (1) emergency planning
and notification; and (2) community right-to-know. Both functions involve
information gathering and dissemination. Implementation of EPCRA occurs to
a great degree through the requirement that businesses and industry make
information on their chemical use and disposal publicly available.

The emergency planning facet requires states and local communities to make
advanced preparations for dealing with emergencies relating to hazardous
materials. These requirements are intended to prepare state and local
communities for chemical accidents, of both major and minor proportions.
EPCRA does not dictate that any particular method of emergency planning be
adopted by a community or local government, but rather provides a framework
within which local governments and citizens can fashion measures for
emergency planning. The emergency notification procedures, however, do
direct that state and local agencies be immediately informed of hazardous
chemical releases so that they can take appropriate action.

The community right-to-know feature of EPCRA provides ordinary citizens,
without the help or need of governmental intervention, with new rights to
critical information about hazardous and toxic chemicals possessed and
released by businesses.[16] As a means to effectuate community
right-to-know, EPCRA requires unprecedented disclosure by industry, as well
as citizen access, concerning the presence and release of hazardous and
toxic chemicals at industrial locations. The right-to-know portions of
EPCRA were hotly debated, and were included in the Act despite heavy
opposition from industry and the Reagan Administration EPA.[17]

EPCRA started out in obscurity. Unlike other major federal pollution
control statutes (such as the Clean Water Act[18], Clean Air Act[19] and
CERCLA[20]), it remains relatively obscure. However, it has turned out to
be one of the most significant pieces of environmental legislation in
decades, most particularly its right-to-know provisions about toxic
chemicals, the Toxics Release Inventory (TRI). TRI requires manufacturing
facilities to report routine releases of toxic chemicals to the public and
the EPA. Making TRI data publicly available to any citizen has been
described by an EPA administrator as "among the most important weapons in
efforts to combat pollu tion."[21] The present Clinton EPA administration
regards the TRI as "among our most potent environmental weapons."[22]

This article is likely the most comprehensive law journal article on EPCRA
to date.[23] Part II describes the legislative provisions in detail. Part
III examines the initial worries about EPCRA from those who had the most to
fear from it: governmental officials and industry. Part IV discusses
whether these fears were justified. One such fear that did prove valid was
industry's concern that publicly-provided information on toxic chemical
releases would lead to a backlash against toxic polluters and stronger
efforts to uncover and control toxic pollution. Part V discusses the
profound effect the TRI has had on environmental organizations, the press,
legislators, regulatory agencies, and most importantly, industry. And
finally, Part VI describes recent threats to the very existence of the TRI
program by the so-called "regulatory reform" pursued by the Republican-led
Congress as part of that party's "Contract with America" campaign.

II. EPCRA PROVISIONS

EPCRA is organized into three subtitles.[24] Subtitle A, "Emergency
Planning and Notification," consists of sections 301-305.[25] This subtitle
establishes the procedure used to create state and local emergency planning
bodies, the development of emergency response plans, and emergency
notification requirements in the event of chemical releases. Subtitle B,
"Reporting Requirements," covers sections 311-313,[26] and creates the
right-to-know component of the legislation through reporting requirements
for facilities where toxic and hazardous chemicals are found. Subtitle C,
"General Provisions," encompasses sections 321-330[27] and includes, among
other things, trade secret protection, enforcement, and citizen suits.

A. Emergency Planning and Notification

1. Emergency Plans

Under EPCRA, states are required to establish two kinds of governmental
entities to undertake emergency planning and process the information which
businesses are required to submit: (1) state emergency response commissions
(SERCs); (2) and local emergency planning committees (LEPCs). The SERCs,
appointed by the governor, serve as the focal point for emergency response
coordination. They also provide a federal government link for enforcement
requests.[28] In turn, SERCs divide the state into local emergency planning
districts, appoint a LEPC for each and supervise and coordinate the LEPC's
activities.[29]

The LEPCs, which theoretically represent a broad cross-section of their
communities,[30] are required to prepare and implement plans for chemical
emergencies.[31] Both SERCs and LEPCs are responsible for receiving and
processing information received by businesses for emergency planning, and
must formulate procedures for handling public requests for this
information.[32]

EPCRA provides no more than a road map for the preparation of emergency
plans, specifying minimum requirements and leaving the details up to the
LEPC.[33] Funding is also up to the LEPC. EPCRA does not authorize federal
funds to support this planning effort.

2. Emergency Planning Notification—Covered Facilities and Substances

Emergency response planning by states and communities is directed at
facilities which use or store "extremely hazardous substances" (EHS) in
excess of "threshold planning quantit[ies]" (TPQs).[34] These hazardous
substances were originally drawn from a list of 386 chemicals published by
the EPA a year before the enactment of EPCRA. Facilities which have
threshold amounts[35] of any EHSs on their premises must designate a
business emergency planning coordinator, notify the SERC of the presence of
the substance, and cooperate with the LEPC in emergency planning.[36]
Additionally, a facility subject to the emergency planning and notification
requirements for EHSs must provide the LEPC with all the information
necessary, or requested, to develop a plan.[37] This information typically
includes safety audits and hazards assessments.[38] All information
provided to the SERCs and the LEPCs by the covered facilities must be made
available to the public.[39]

3. Emergency Release Notification

EPCRA requires a facility to immediately notify the community and the state
(i.e., the LEPC and the SERC) of any release or spill of predetermined
amounts outside the facility's boundary. These predetermined amounts are
designated as a "reportable quantity" (RQ) of hazardous substances and
extremely hazardous substances.[40] Chemicals covered under the emergency
release notification include not only over 300 EHSs to which emergency
planning requirements apply,[41] but also more than 700 hazardous
substances subject to the emergency release notification requirement of the
Superfund law.[42] More facilities are covered under the emergency release
notification requirements than under the planning requirements, because
release reporting may be required even when the TPQ of a substance is not
present.[43]

For some of the most hazardous and toxic chemicals on EPCRA and Superfund
lists, releases of more than one pound must be reported.[44] For others,
the reporting quantities range from ten pounds to ten thousand pounds.[45]
All accidental release information provided to the LEPC or the SERC is
available to the public.[46]

B. Community Right to Know

There are two kinds of industry-provided information which provide the
basis for community right-to-know under EPCRA. One kind of information
available to the public pertains to use and storage. This kind of
information includes reports of the types, amounts, location and potential
effects of hazardous chemicals being used or stored in designated
quantities in a community. The other kind pertains to releases and includes
reports of toxic chemical releases into the air, water or soil.

1. Hazardous and Extremely Hazardous Chemical Reporting

Hazardous chemical reporting under EPCRA builds upon the Occupational
Safety and Health Act of 1970 (OSHA) and its regulations,[47] which
previously provided employees with a "right to know" about hazardous
chemicals in the workplace by allowing them access to Material Safety Data
Sheets (MSDSs)[48] as prescribed by OSHA's Hazard Communication Standard
(HAZCOM).[49] More than 50,000 hazardous chemicals are covered by the
HAZCOM standard.[50]

There are two different ways facilities must report on their production,
use, or storage of OSHA-regulated hazardous chemicals.[51] First,
facilities must report on-site chemicals to the SERC, the LEPC, and the
local fire department. This requirement covers hazardous chemicals
specified under OSHA, that is, chemicals for which employers must maintain
MSDSs. Section 311 of EPCRA directs that if a facility is required to
prepare MSDSs under OSHA, it must submit either actual copies of its MSDSs
or lists of MSDSs for hazardous chemicals exceeding threshold amounts to
the SERC, the LEPC, and the local fire department.[52] The EPA is
authorized to establish the threshold quantities for this form of
reporting.[53] The reporting requirement is triggered if during the
previous year, a facility held more than 10,000 pounds of a hazardous
chemical, or more than 500 pounds or 55 gallons, or above the threshold
quantity, whichever is lower, of an EHS.[54] The MSDSs or lists must be
updated whenever a facility uses more than a threshold amount of a new
chemical.[55] A public request for a facility's MSDS information must be
made through the LEPC, which in turn is required to obtain the MSDS from
the facility and make it available to the public.[56]

Second, companies that submit MSDSs or lists are also required to file more
detailed chemical inventory information with the LEPC, the SERC, and the
local fire department.[57] These inventory forms, required under section
312 of EPCRA, provide information on the types, the amounts (in ranges) and
the general location of chemicals present at a facility. This information
is important because it alerts communities as to how and where large
amounts of potentially dangerous chemicals reside.[58] Although the LEPC
and the SERC must respond to public written requests for inventory data on
a chemical within forty-five days, fulfilling these requests is
discretionary, unless the chemical is an EHS or if more than 10,000 pounds
of the chemical is held on-site at any one time.

There is a two-tier approach to the annual chemical inventory reporting.
The Tier I form, submitted to the LEPC, the SERC, and the local fire
department, is essentially an annual general summary of the aggregate
amounts and general locations of all chemicals at a facility. The chemicals
are grouped in categories according to health and physical hazards;
specific chemical identities are not revealed.[59] In contrast, the Tier II
form is for specific chemicals and is more detailed about location and
storage information.[60]

Tier I forms are required, but Tier II forms are not, unless they are
requested for specific chemicals by the LEPC, the SERC, or the local fire
department.[61] However, a company may elect to provide Tier II forms
instead of the Tier I version.[62] A key difference between the two levels
of information—and a key reason why companies may prefer to provide Tier II
forms—is that Tier I information is readily discloseable to the public,[63]
while the availability of Tier II information is subject to restrictions.
Tier II availability depends upon the status of the requesters, and whether
they are: (1) SERCs, LEPCs, or the local fire department; (2) state or
local officials; or (3) the public.[64]

The MSDSs, the MSDS lists, and the chemical inventories of sections 311 and
312 of EPCRA can be considered part of the community right-to-know because
they consist of reported information that is readily available to the
public. However, the most significant use of this information is for
emergency planning. The bulk of the information used by LEPCs for preparing
emergency release response plans is provided this way.[65]

2. Toxic Chemical Release Reporting

The most far-reaching, important and controversial right-to-know provision
in EPCRA is section 313.[66] Section 313 requires large manufacturing
facilities to file annual reports on routine releases and transfers of
several hundred toxic chemicals found in wastes.

The reports are collected by the states and the EPA and disseminated
through a variety of means. The EPA must make this information public in a
computerized database.[67] The data collected by the EPA is collectively
known as the TRI data. The TRI database is the first chemical-specific,
multi-media accounting of toxic releases to the environment ever mandated
by federal law.

According to EPCRA, the toxic chemical release reporting forms are intended
to provide information to federal, state, and local governments and to the
public, including citizens who live in areas surrounding the facilities
which released or transferred the toxic chemicals.[68] TRI data is meant to
inform citizens about toxic chemical releases and transfers, assist
government and researchers in conducting research and data gathering, and
aid in the development of environmental regulations and standards.[69]

The TRI reporting covers releases that occur as a result of normal business
operations, and must be distinguished from section 304's reporting
requirements for abnormal emergency releases.[70] The toxic chemical
release reports are submitted on standardized forms (Form R) created by the
EPA.[71] Form R is submitted to the EPA and state environmental
agencies.[72] Facilities must use Form R to report their total annual
releases of toxic chemicals into the air, surface water and soil,[73] as
well as transfers of these chemicals off-site to public sewers or waste
treatment, storage or disposal facilities.[74] The report must use
estimates of releases, not actual measurements of releases.[75] The first
toxic chemical release forms were supposed to be submitted on July 1, 1988
to cover releases for the 1987 calendar year, and then every year
afterwards by July 1 to cover preceding calendar year releases.[76]

Reporting is generally directed at large manufacturing operations. EPCRA
specifies that an establishment is required to report only if it meets
three criteria. The facility must: (1) manufacture in Standard Industrial
Classifications (SIC codes) 20-39;[77] (2) employ ten or more full time
workers;[78] and (3) manufacture, process, import or otherwise use toxic
chemicals above yearly threshold amounts.[79]

EPCRA originally established a threshold of 10,000 pounds[80] for use of
toxic chemicals, and a declining threshold for manufactured or processed
toxic chemicals: 75,000 pounds for the first report for the 1987 calendar
year, 50,000 pounds for the next year, and 25,000 pounds for subsequent
reports.[81] The toxic chemical release reporting requirement was
originally applied by EPCRA to a list containing 320 chemicals,[82]
although the EPA has the authority to add or delete toxic chemicals to the
list on its own initiative or by petition.[83] In 1994, the list of
reportable TRI chemicals nearly doubled, to over 600.[84]

Congress expanded the TRI reporting requirements in 1990 with the enactment
of the Pollution Prevention Act (PPA).[85] The goal of this legislation was
to encourage industry to engage in pollution pre vention,[86] which is
directed at eliminating or reducing the generation of pollutants, as
opposed to pollution control, which is directed at managing pollutants and
wastes once they are created. Pollution control is overwhelmingly the
predominant means by which pollution is regulated in the United States.[87]
PPA's main objective was to encourage the pollution prevention strategy of
source reduction, where the pollution is curtailed at the industrial
origin.[88]

The initial Form R adopted pursuant to EPCRA required facilities to report
releases to air, land and water and certain transfers of TRI chemicals
off-site. Reportable off-site transfers included shipments of toxic
chemical wastes for treatment or disposal. With the adoption of the PPA,
reporting additional kinds of releases was required: on-site and off-site
transfers of TRI chemicals; and source reduction, recycling, and waste
minimization efforts by companies.[89] For reporting purposes, one-time
releases of an accidental, remedial or abnormal nature were added to
routine releases.[90] As a result of the PPA, Form R reporting requirements
added TRI chemicals sent elsewhere to be recycled, as well as reporting of
on-site TRI chemical recycling and treatment.[91] Waste stream data in the
TRI form was required by the PPA's decree that the form include the
quantity of TRI chemicals generated as waste prior to recycling, treatment,
or disposal.[92] Finally, the PPA directed that Form R was to include
source reduction efforts undertaken by the facility for the TRI
chemicals.[93] All the additional reporting mandated by the PPA was to
begin in the 1991 reporting year.[94]

C. Other Provisions

1. Trade Secrets

EPCRA allows facilities to exempt their trade secrets from reporting
requirements, but the withholding of such secrets is limited, and subject
to confidential reporting to, and approval from, the EPA.[95] Only a
specific chemical identity may be protected as a trade secret.[96] Even a
trade secret chemical must have its generic class or category submitted to
the EPA if it is classified as hazardous, extremely hazardous, or
toxic.[97] Trade secret protection does not apply to emergency release
notification of hazardous substances.[98]

In order for a chemical to be entitled to trade secret protection, certain
statutory conditions apply: (1) the withheld information must not have been
disclosed to anybody other than the government or a person bound by a
confidentiality agreement; (2) no disclosure is likely under any other law;
(3) forced disclosure must be likely to cause harm to the competitive
position of the business; and, (4) it must be unlikely that the chemical
would be discovered through reverse engineering.[99]

The facility seeking to withhold the information has the burden of
establishing trade secret protection. If the EPA has determined that the
information is not a trade secret, it cannot be withheld.[100] Information
on trade secret chemicals may still be disclosed to certain members of the
public or the state under certain circumstances: information must be
disclosed to health professionals for diagnostic, treatment, and
preventative purposes.[101] Upon a request by the state's governor, the EPA
is required to provide trade secret information to the state.[102] Trade
secret claims may be challenged by the public by petitioning the EPA.[103]

2. Preemption

EPCRA expressly does not preempt any state or local law or affect or modify
the obligations or liabilities of any person under other federal laws.[104]
As a result, a state or locality may impose stricter requirements for
emergency planning, reporting, and notification regarding the release of
hazardous and toxic chemicals.

3. Enforcement and Civil Suits

(a) Federal Government Enforcement

EPCRA provides the federal government with a system of administrative,
civil and criminal penalties for enforcement of the legislation.
Enforcement measures are primarily directed towards facilities which
violate the law; there are no enforcement provisions which would allow the
EPA to undertake an action against a governor, a SERC, or a LEPC for
failing to carry out responsibilities for implementing or administering
portions of EPCRA.

The EPA can order a facility to comply with the emergency planning
notification requirements and enforce the order in federal district
court.[105] The federal court can impose a civil penalty of up to $25,000
per day for each violation of an EPA order to comply with the emergency
notification requirements.[106] The EPA can also assess administrative
penalties.[107] The EPA may impose one of two kinds of administrative
penalties:[108] Class I, which involves an informal administrative process
and allows a maximum penalty of $25,000[109] per violation, or Class II,
which involves a formal administrative process and allows a penalty of up
to $25,000 per day for each day the violation continues.[110]

Additionally, the EPA may initiate administrative actions or civil suits in
federal court to collect penalties for violations of requirements relating
to MSDS information, toxic chemical release forms, emergency and hazardous
chemical inventory forms, or trade secret claims.[111] Failure to submit
MSDSs or lists of MSDS chemicals, to provide information requested by
health professionals on trade secret chemicals, or to submit all
information the EPA requires to evaluate a trade secret claim is subject to
penalties of up to $10,000 per day for each violation.[112] A civil or
administrative penalty of up to $25,000 per violation can be assessed for
failure to comply with the TRI inventory requirements, for failure to
comply with the annual emergency and hazardous chemical inventory
requirements,[113] and for frivolous trade secret claims.[114]

EPCRA's criminal coverage is much more limited than its civil and
administrative coverage. Criminal prosecution is limited to violations of
emergency notification requirements[115] and for unlawful disclosure of
trade secret information.[116]

(b) Enforcement by Citizens, State Governments, and Local Governments

Two kinds of suits are authorized by EPCRA,[117] those allowed for "any
person" and those restricted to state and local governments, including
SERCs and LEPCs. The first kind, commonly known as the citizen suit, can be
divided into four categories based upon the nature of the defendant. First,
citizen suits can be brought against facilities.[118] These include suits
for failure to submit emergency follow-up notices, MSDSs or MSDS lists,
Tier I hazardous chemical inventory forms, and toxic chemical inventory
forms.[119] Second, citizen suits are allowed against the EPA for failure
to carry out its responsibilities under the Act. Such neglected
responsibilities may include publishing uniform hazardous chemical
inventory forms, responding to petitions to list or delete substances
subject to the TRI reporting, establishing TRI computer databases,
promulgating trade secret protection regulations, or rendering timely
decisions to petitions challenging trade secret protection by
facility.[120] Third, where the EPA or a state fails to provide a mechanism
for public access to EPCRA information, a citizen suit is authorized to
obtain compliance.[121] And finally, citizen suits are permitted against
the EPA or a state for failure to respond within 120 days to a public
request for a Tier II annual hazardous chemical report from a
facility.[122] It should be noted that EPCRA does not authorize citizen
suits against LEPCs.

States or local governments can bring suits against facilities for failure
to provide emergency planning notification, MSDSs or MSDS lists, MSDS
information sought by a LEPC or the public, or hazardous chemical inventory
forms.[123] SERCs, LEPCs, or fire departments may institute suits against
facilities for failure to provide emergency response plans and Tier II
hazardous chemical inventory forms.[124] A state can sue the EPA for its
failure to comply with a state's request for the identity of a chemical for
which a facility has claimed trade secret protection.[125] In any of these
EPCRA suits, the federal court can award attorney fees and costs to any
party that prevails.[126]

4. Availability of EPCRA Information to the Public

Except for trade secrets,[127] EPCRA provides that each emergency plan,
MSDS, hazardous chemical list, chemical inventory form, toxic chemical
release form, and written follow-up emergency notice, must be made
available to the general public at government offices designated by the
EPA, the state, or the local emergency planning com mittee.[128] Each LEPC
must annually insert public notices in local newspapers that such
information is available to the public.[129] Congress understood that for
data obtained from the toxic release forms, the EPA could fulfill the
requirement for public availability by establishing a national computer
database for TRI data which is accessible to the public.[130]

III. FEARS, CONCERNS, AND EXPECTATIONS FOR EPCRA

Virtually all the early fears and apprehensions about EPCRA came from
business and industry. Some of their concerns proved to be completely
unwarranted; others were fulfilled, but in varying degrees. Certain
unwelcome consequences had been completely unanticipated but turned out to
be quite significant.

Environmental groups had few major discernible reservations or great
expectations about EPCRA at first. For them, like the general public, EPCRA
was an obscure, relatively unimportant informational law compared to other
federal pollution laws with regulatory purposes and clout. Conversely,
EPCRA has turned out to be a boon to environmental organizations.

State and local governments had some early concerns about the impact and
burdens of EPCRA. The federal government initially had few concerns or
hopes for EPCRA, and therefore, the law was given low priority. However,
the legislation eventually increased in importance for the federal
government.

A. Business Cost and Burden Concerns

The EPA originally estimated that EPCRA would cost the average business
between $400 and $10,000 a year.[131] Obviously, large companies can afford
the cost of environmental compliance with EPCRA more easily than small
companies.[132] Typically, small business interests complain about new or
additional government regulation as both unnecessary and overly burdensome
and inflexible. This complaint is frequently accompanied by proposals to
eliminate or dilute regulatory requirements upon small businesses. Speaking
for these concerns, the Small Business Administration (SBA) during the Bush
Administration characterized EPCRA as creating "much pain, little gain" for
small business.[133]

Shortly after EPCRA was enacted, the EPA proposed rules establishing
thresholds for the MSDS reporting and hazardous chemical information
inventory form reporting under sections 311 and 312 of EPCRA. The proposed
rule called for phasing-in the threshold for hazardous chemical inventory
reporting at 10,000 pounds the first year the rule would take effect, 500
pounds the second year and zero the third year.[134]

The SBA disagreed with the EPA's certification that the proposed rule would
not have a significant impact on small businesses, arguing that it would
annually "cost thousands of dollars for over 100,000 small business
facilities, many of which have profits in the $10,000 range."[135] It urged
the EPA to increase the threshold instead and thus effectively exclude
small businesses from hazardous chemical inventory reporting.[136] The SBA
maintained that more TRI reporting by small businesses would yield little
useful data while creating high costs for them.[137] The SBA argued that
the EPA should use its discretion to adopt either risk-based or
emissions-related requirements for reporting, instead of basing the TRI
reporting on aggregate production or use-based amounts and on SIC manu
facturing categories.[138] This suggested approach was intended to
effectively exempt most small businesses from the TRI reporting, since it
concluded that the releases of thousands of small facilities posed little
or no risk to the environment and constituted only a small portion of
overall releases.[139]

B. State and Local Government Cost and Paperwork Concerns

The main concern of localities and states was the additional paperwork and
financial burdens that EPCRA might create for them,[140] since the
responsibility for chemical disaster emergency planning falls exclusively
upon state and local governments through their respective SERCs and
LEPCs.[141] Additionally, states share responsibility with the EPA for
receiving and using the TRI reports.[142] Administration of the other
reporting and notification requirements of the legislation variously fall
upon the SERCs, the LEPCs, and the fire departments.[143]

An early study in Texas found that even communities with established
emergency planning and response programs anticipated that managing
right-to-know data and public outreach would be a serious burden.[144] The
greatest early concern of local officials around the nation was the
prospect of being swamped with paper.[145] One fire chief noted that as a
result of the first-time facilities required to submit MSDS information and
annual hazardous chemical inventories, 33,000 fire departments, 30,000 of
which were volunteer, faced receiving from 3 million to 20 million
documents detailing the hazardous properties of 50,000 chemical
products.[146] The fire chief doubted whether fire departments could bear
or afford the responsibility.[147]

Rural areas were assumed to be less able to cope with and afford EPCRA
responsibilities than urban areas.[148] The Director of the New Jersey
Division of Environmental Quality, which administered a community and state
right-to-know law enacted prior to EPCRA,[149] noted from experience that
funding, or lack of it, was the key factor to successful implementation of
any new program and predicted that many state and local efforts would fail
because of insufficient funding.[150] He and other state officials
contended that federal financial and technical assistance and EPA
leadership was important to state and local efforts to undertake EPCRA, but
questioned whether this help and guidance would be forthcoming.[151]

C. Loss of Trade Secrets

The issue of trade secrets was an early cause for concern after the
enactment of EPCRA. Environmentalists feared that the Bush Administration
EPA was moving toward being too permissive in granting trade secret
protection requests for information required by EPCRA, with the result that
industry would be able to withhold data necessary to protect public health
and the environment.[152] Most of the anxiety expressed over trade secrets
came from industry and its sympathizers in government. One commentator
called the requirement that businesses divulge trade secrets to the EPA a
"formidable burden" and one which could "ruin many businesses."[153]

Once a trade secret is lost, it is lost forever.[154] The information can
fall into the hands of competitors either from the EPA's failure to grant
protection under EPCRA, or leaks from Congress, the EPA, or state
governments.[155] EPCRA was criticized because it allegedly would require
manufacturers to report information which they previously withheld as
confidential under the Toxic Substances Control Act (TSCA).[156] Trade
secret protection under EPCRA was characterized as confusing, unreliable,
unpredictable, and unwieldy. Ad ditionally, the EPA would "find itself
awash in trade secret issues to a far greater degree than any federal
agency in history."[157] An EPA spokesperson predicted that trade secrecy
issues under EPCRA would be heavily litigated.[158]

D. Litigation and Enforcement Concerns

EPCRA created widespread industry dread about expensive lawsuits and costly
damages which might result from the enforcement or use of the
legislation.[159] This anticipated litigation was expected to rise from the
three fronts of numerous citizen suits, federal enforcement actions and
penalties, and toxic torts based upon information generated by EPCRA.

EPCRA was called the "most important environmental enact ment of the 1980s"
by one attorney providing instruction at a conference informing businesses
on how to cope with expected EPCRA lawsuits.[160] He called section 313,
the TRI provision, the "nuclear bomb" of the law, and regarded it as a
fruitful basis for citizen suits that alleged failed or flawed submissions
of forms by companies.[161] A corporate attorney intimated that minor or
inadvertent errors could become the basis for citizen suits.[162] Citizen
suits over toxic and hazardous chemical information held the prospect of
becoming "embarrassing" to businesses.[163] A few of the early EPCRA
citizen suits filed by one major regional environmental group were
interpreted by a corporate law publication to be the tip of the iceberg for
future citizen suit litigation. It was also predicted that citizen suits
would provide the bulk of EPCRA enforcement.[164] The EPA, as well,
expected citizen suits to be a significant enforcement factor for
EPCRA.[165]

Filing citizen suits is one form of enforcing EPCRA. Another form of
enforcement that created anxiety for businesses was enforcement of the
legislation by the federal government, in particular by the EPA.[166] In
both instances business feared being hit with heavy penalties for EPCRA
violations.[167] There was concern that small businesses would become major
victims of the EPA's enforcement,[168] a prospect the EPA very early
attempted to dispel.[169]

The most extensive alarm raised about EPCRA-connected law suits was that
they could have a far-reaching and significant effect on increasing the
exposure of businesses to toxic tort litigation.[170] One corporate
attorney called EPCRA a "veritable gold mine" for potential plaintiffs in
toxic tort suits.[171] Information a producer or user of chemicals is
forced to divulge concerning its emissions or practices under EPCRA
supposedly can be used by plaintiffs' attorneys to investigate and find
situations for toxic tort suits, to identify defendants, and to ease
discovery and proof of liability in such suits.[172] Toxic tort suits are
typically time-consuming and costly. One corporate lawyer noted that EPCRA
lowers the "entry barriers" to toxic tort litigation.[173]

It was feared that right-to-know data would create "sensationalism" and a
bad litigation climate for industry with the publication of "terrifying"
chemical data, distort the public perception about chemical risks which
would lead to harsh public perceptions about chemical releases, provide
large amounts of chemical data that non-traditional experts could use to
acquire undeserved credibility, and raise the possibility of increased jury
awards when a defendant failed to comply with any EPCRA requirement.[174]
EPCRA was seen as a potent discovery instrument for litigation not only
involving toxic torts, but also regarding facilities, personal injury,
product liability and zoning.[175]

EPCRA information in general may serve as a potential tool to enforce other
environmental laws. The EPA was expected to use information under EPCRA not
only to enforce this law, but also to enforce other major environmental
laws like RCRA, CERCLA, the Clean Air Act, and the Clean Water Act.[176]
EPCRA reports were seen as enabling the EPA and citizen litigants to
uncover evidence of discharges in violation of these other laws.[177]

E. Preemption Concern

Concern about preemption arose. EPCRA expressly provides it will not
preempt state and local laws.[178] From the business perspective,
preemption was preferred because it was feared the failure of EPCRA to
preempt state and local emergency planning and community right-to-know
regulation would lead to conflicting requirements in which businesses would
be caught in the middle.[179] It was contended that EPCRA would be no more
than a regulatory floor, allowing sharply divergent local interests in
several jurisdictions to impose different requirements that would
dramatically increase the cost of compliance due to additional paperwork,
chemical lists, and reporting demands.[180]

For the states, the preemption concern ran in a different direction. States
feared that the EPA would forget the existence and importance of state and
local programs and neglect to integrate EPCRA responsibilities and
requirements with them.[181] This state sensitivity over preemption by
EPCRA had some basis in past experience. OSHA had conflicted with state and
local community and worker right-to-know laws, and the federal courts
largely deter mined that OSHA preempted them.[182]

F. Burden on Federal Government

The EPA found the responsibilities of EPCRA to be daunting. An EPA
assistant administrator whose division would be responsible for managing
EPCRA saw the "sheer magnitude" of handling the information as a serious
challenge.[183] He noted that the EPA had to take an enormous amount of
EPCRA data and put it in a form understandable to the public.[184] He
predicted 30,000 facilities would have to file information in the first
year, that this number would double in three years, and that over this
period a total of 120,000 reports would be handled by the agency.[185]

G. Public Chemophobia

By far, the greatest fear stirred up by EPCRA was the fear by some in the
chemical industry that this newly released information would lead to a
severe public reaction against them. The head of the EPCRA committee of
chemical industry executives, a group formed by the Chemical Manufacturers'
Association, described the public as "chemophobic."[186] An IBM executive
told a trade association that once EPCRA information was made public it is
"probably going to scare a lot of people."[187] The chairman of Du Pont
Chemical advised the chemical industry to try to convince the public that
chemical releases were "not of crisis proportion."[188] A corporate
attorney was particularly graphic, stating that there may be "panic in the
streets" when EPCRA information is revealed to the public for the first
time and that the law would "lift the veil of secrecy" about chemicals and
"create a new mystery: how can companies release toxic chemicals without
killing us all?"[189] Reagan Administration EPA officials appeared to share
this general industry perception that the public would be shocked by what
EPCRA revealed.[190]

Public concern about toxic chemicals, in and of itself, was not what
industry most feared, but rather the consequences of that concern. Perhaps
the worst nightmare of industry was the description of the law provided by
a corporate environmental lawyer: "[a]s it discloses, it will inform, it
will interest, and it will be a rabble rouser."[191] An environmental
official from Johnson Wax expressed the worst consequence industry could
face from EPCRA disclosures: that EPCRA would lead to greater governmental
environmental regulation when the public reacted to the risks perceived
from the disclosed data.[192] Fear of an adverse reaction from a
Schemophobic" public and more governmental regulation prompted a few
prescient industry representatives to warn their allies and colleagues
throughout American manufacturing that EPCRA could be a public relations
nightmare and that they should engage in damage control as early as
possible.[193]

IV. FEARS FULFILLED AND UNFULFILLED

A. No Trade Secret Problem

The concern about trade secrets appears unwarranted.[194] Very few trade
secret claims have been made under EPCRA. In the first year of TRI
reporting, the EPA indicated that for over 19,000 facilities submitting TRI
reports, only twenty-eight filed forms with trade secret claims.[195] The
EPA received about 2000 trade secret claims for MSDS information submitted
under section 311 of EPCRA, a relatively modest amount considering that at
least 3 million MSDS forms for over 50,000 chemicals are annually submitted
under this program.[196] Leaks of trade secret information would seem an
even more tenable concern in the few states which have expanded their
chemical information programs, but there appear to be no problems in these
places as well.[197]

B. Preemption Problem Unrealized

Preemption has not been a serious problem for EPCRA. At the very least it
has not generated significant litigation. Only one court has addressed the
preemption issue, the Ohio Supreme Court, and it ruled that EPCRA did not
foreclose additional requirements for hazardous chemical reporting imposed
by Ohio.[198] A number of states showed no reluctance in enacting
right-to-know law provi sions which were more stringent than those of
EPCRA.[199]

C. Small Business Tempest

The small business problem has nagged at EPCRA. As already noted, in the
Reagan Administration, soon after the enactment of EPCRA, the SBA urged the
EPA to effectively exempt all small businesses from the law's reporting
requirements.[200] It is important to note that EPRCA is explicitly
constructed to exempt most small businesses from TRI reporting. It does
this by excluding facilities with less than 10 employees and those which
fall below the chemical activity-based thresholds set at several thousand
pounds.[201]

Small businesses cannot be considered categorically harmless toxic
polluters. Small facilities may use large quantities of toxic chemicals
that pose a significant threat to workers and the environment.[202]
Nevertheless, the EPA from the outset yielded to small business concerns by
providing them relief in the initial 1988 regulations implementing the TRI
reporting requirements. These regulations included a provision to allow
"range reporting" for annual toxic chemical releases of less than 1000
pounds, thereby alleviating some of the TRI reporting burden to small
businesses.[203]

This modest accommodation from the EPA did not satisfy small business
interests. The SBA assistant counsel, who in that capacity in 1988 had
urged the EPA to reduce the reporting burden on small businesses, was in
private practice four years later and representing a small business
coalition seeking exemption from TRI reporting.[204] In 1992, the SBA,
backed by a group of small business trade associations,[205] formally
petitioned the EPA to waive the annual TRI reporting requirement for small
companies that emitted small amounts of toxics, asking the EPA to instead
shift from reporting the extent of use of chemicals to actual
releases.[206] The SBA specifically proposed that the EPA shift to
release-based exemptions for the TRI facilities, exempt reports of
individual releases or transfers of 5000 or less pounds for the vast
majority of chemicals listed under section 313, and provide separate
regulatory treatment for highly toxic or low release volume chemicals.[207]

The SBA argued that these facilities should not have to report because they
release insignificant amounts of toxics and pose no threat to communities
or the environment. Moreover, the SBA maintained, the exemption would save
nearly $331 million annually in compliance costs, reduce the regulatory
burden on small businesses, allow the EPA and the state environmental
agencies to direct scarce budget and enforcement resources to more
significant environmental problems,[208] concentrate TRI reporting on
facilities responsible for the vast majority of releases, remove virtually
all small facilities, improve the effectiveness and efficiency of the TRI
reporting program, and result in major savings to small businesses.[209]
The SBA was also concerned about an increasing burden for small businesses
because of costly state and federal "piggyback" or "domino" reporting
requirements.[210] The SBA contended that if a threshold of 5000 pounds
were used to trigger release reporting for TRI chemicals, ninety-nine
percent of air releases, ninety-five percent of water releases, and
ninety-eight percent of land releases still would be reported,[211] and
that the TRI would still capture eighty-five percent or more of the toxic
chemical releases but eliminate ninety percent of the reports and nearly
ninety percent of the reporting facilities.[212]

The EPA was cool to the particulars of the 1992 SBA proposal, but appeared
open to the general idea of finding other options for easing the TRI
reporting responsibility.[213] The director of EPA's Toxics Release
Inventory staff cautioned that "[a] small business does not necessarily
mean a small source."[214]

Not surprisingly, environmental organizations objected to the SBA
proposal.[215] Environmentalists do not want less information, they want
more.[216] An environmental coalition contended that the TRI exemption
would reduce public access to information on the significant contribution
to toxic pollution made by small busi nesses.[217] While expressing some
sympathy with giving small businesses a break, the coalition urged that the
reporting policy in general should go in the opposite direction: expanding,
rather than contracting, TRI reporting.[218] The Natural Resources Defense
Council (NRDC) claimed that the exemption would complicate reporting and
enforcement and diminish both public and government access to the very
considerable toxic pollution created by small businesses. NRDC pointed out
that the vast majority of small businesses were already exempt from the TRI
reporting because the requirement did not apply to facilities with less
than 10 employees.[219]

What is perhaps most surprising is that big industry did not side with
small business. Like environmental groups, the Chemical Manufacturers
Association (CMA) paid lip service to the idea of somehow easing the burden
of TRI reporting on small businesses.[220] The CMA, however, opposed the
SBA proposal to replace the activity-based or use-based thresholds
applicable to manufacturing, processing and other activities with
release-based thresholds.[221] The CMA criticized release-based standards
proposed to provide the small business exemption as "[s]ignificantly
increasing the workload on all businesses by forcing all facilities to
[undertake] complicated release calculations, possibly for hundreds of
sources . . . ."[222] The CMA also charged that these standards would
"[m]ake it difficult for the public, the EPA and the industry to compare
future TRI reports with historical data" and would increase the burden on
EPA enforcement authorities attempting to audit the accuracy of
release-based reports.[223] The states have also objected to release-based
standards for small businesses, contending that if companies were exempted
from reporting small release amounts, then pollution prevention programs
would suffer.[224]

In 1994, the EPA yielded to small business concerns by proposing a rule
that has the effect of exempting the vast majority of small businesses from
filing Form Rs.[225] The proposed rule called for a higher alternative
reporting threshold of one million pounds for facilities with low-level
releases, which was defined as less than 100 pounds of the listed
chemicals.[226] Instead of filing a Form R, the facilities would file an
annual certification that they were covered by the exemption. As has been
noted, the use-based statutory thresholds for reporting are 25,000 pounds
per year for manufacturing, processing, and importing and 10,000 pounds per
year for other uses of a toxic chemical.[227] The proposal exempted an
otherwise covered facility from the TRI reporting for any listed chemical
it released, or transferred offsite for treatment or disposal, in amounts
less than 100 pounds if the facility generated less than one million pounds
of all listed chemicals combined.

The effect of the higher alternative threshold standard for low-level
releases would be to eliminate 20,500 annual TRI forms submitted to the
EPA, or roughly thirteen percent of all annual reports that would otherwise
be filed with the EPA. Additionally, the higher alternative threshold
standard would partially eliminate reporting for over 10,000 facilities and
completely eliminate reporting for nearly 4000 facilities.[228] The EPA
analysis showed that such an exemption would reduce the total amount of
releases reported to the EPA by .01 percent, or approximately 200,000
pounds out of 4.5 billion pounds of all releases.[229] However, while the
loss of information for releases would appear to be relatively
insignificant, the same is not true for the loss of information about waste
generation that is important to know for pollution prevention efforts. More
than 16 percent of the total waste reported to the EPA, up to 6.1 billion
pounds, would be excluded by this definition.[230]

The EPA alternate threshold/low-release proposal was a strange hybrid of a
use-based/release-based standard. During the nearly two years between the
SBA petition and the proposed rule, the only option the EPA had been
seriously considering was pure, straightforward release standards.[231] In
response to the SBA petition, for nearly two years the EPA had indicated
that it was considering four separate release-based thresholds of zero
pounds, 500 pounds, 1000 pounds and 5000 pounds for small business relief
from the TRI reporting.[232] The EPA's solution was a dangerous compromise,
adopting a partial release-based standard with a partial use-based
threshold.

The EPA partly justified the proposed new exemption as giving small
businesses needed relief without resulting in significant loss of data or
environmental protection.[233] The EPA's principal rationale for the
exemption appeared to be: (1) that it planned to greatly expand the TRI
program by adding over 300 chemicals to the TRI reporting; (2) that this
expansion would represent a great expense to businesses and industry; and
(3) that to offset the burden the EPA could exempt small facilities and
releases to some extent.[234] Behind this rationale was the likelihood that
the EPA was under pressure from the Clinton Administration Office of
Management and Budget (OMB) to "balance" steps that expanded the TRI
reporting with moves that reduced the overall reporting burden on
business.[235] The OMB, which must approve EPA regulations, had been under
pressure from small businesses to lighten the reporting load under
EPCRA.[236]

Environmentalists are the chief critics of exemptions for small chemical
releases. They contend that small releases of toxic chemicals can still
lead to significant, sometimes enormous, dangers to public health and the
environment, and that the true dangers of toxic chemicals are not fully
understood.[237] The EPA supported the view that small releases can be
harmful in the annual TRI report it released several months prior to
issuing the proposed rule.[238] For environmentalists, the only credible
release-based exemption would be an exemption set as close to zero releases
as possible.[239] Small release exemptions, which relieve large numbers of
facilities from reporting, also appear vexing to environmental
representatives in light of extensive noncompliance with the TRI reporting
requirements by businesses.[240] The EPA conceded that as a result of its
small release exemption proposal, some communities would be deprived of the
right-to-know about virtually all waste generation data that would
ordinarily be captured by the TRI reports.[241] Low-release exemptions are
also inconsistent with EPA and other future federal efforts to pursue zero
discharge regulatory restrictions for some serious toxic chemicals.[242]

In late November 1994, the EPA adopted the low-release/high-threshold
approach in a final rule.[243] The rule retained the one million pound
threshold level, but made several changes from the earlier proposal to
address some of the concerns of environmentalists and state regulators. The
EPA adopted a "total waste" requirement for arriving at the one million
pound threshold and dropped what environmentalists called the "recycling
loophole" which would have removed from this calculation, and thus from the
TRI information gathering, transfers of wastes for recycling or
incineration for energy recovery.[244] The final rule increased the
low-level release level from the previously proposed 100 pound level to 500
pounds. The EPA indicated the higher release level would result in nearly
the same large reduction in the number and proportion of the Form Rs as
that contemplated in the original proposal, but there would be a
substantial difference and decrease in the amount of data lost with a
small-source exemption.[245] The EPA primarily justified the final rule
exempting small sources as a means to offset another rule issued the same
day which substantially expanded the number of chemicals covered by the TRI
reporting.[246]

D. Emerging Concern of Spending

1. Federal Funding

EPCRA spending began inauspiciously and has been subject to a modest degree
of uncertainty since. Furthermore, EPCRA requires states and local
jurisdictions to administer major portions of the law,[247] and is
therefore vulnerable to the rising revolt against unfunded federal
mandates. Soon after President Reagan signed EPCRA into law in October of
1986, his administration attempted to deprive it of its own independent
line of funding. The Reagan Administration EPA publicly acknowledged in
December 1986 that rather than seek a separate appropriation from Congress
to fund EPCRA activities, it would subordinate the program to part of the
Superfund program and fund it from the appropriations and special taxes
used to finance the Superfund.[248]

The Superfund and EPCRA are in fact separate programs. EPCRA was enacted by
Congress in the same public law as the Superfund reauthorization, but this
was largely a matter of convenience.[249] The irony of the decision by the
Reagan Administration EPA to dip into the Superfund to finance EPCRA is
that the President almost vetoed the Superfund because of his opposition to
a broad-based business tax as a new source of revenue for funding the
Superfund.[250] President Reagan philosophically opposed broad-based
business taxes to fund pollution programs and he was urged by his OMB,
Treasury and Energy departments to use his veto.[251] Reagan bowed to
strong public support for passage of the Superfund reauthorization in
deciding not to veto it.[252]

The EPA had indicated that it would go ahead with its plan to divert
Superfund monies to the right-to-know program unless Congress
objected.[253] Key Congressional figures immediately attacked the Reagan
Administration's intention to use Superfund revenues to fund the
right-to-know program as a violation of the Superfund legislation. This
disapproval operated on the premise, as one congressional aide put it, that
the Superfund program and the right-to-know program were two separate laws,
"like night and day or apples and oranges."[254] Democratic Representative
John Dingell, the powerful chairman of the House Energy and Commerce
Committee, stated that he was "mystified" by the move, called it a "serious
mistake," and noted that Congress intended EPCRA be funded by its own
congressional appropriations and that the Superfund could not be treated as
a "slush fund" to fund other EPA responsibilities.[255]

Dingell had been pivotal in the passage of the Superfund legislation and he
indicated that he would seek congressional appropriations specifically for
EPCRA.[256] The EPA alleged it had legal authority to divert the Superfund
money to EPCRA, but quickly backed off when Dingell and others in Congress
showed irritation.[257] An apparent deal was struck in which the EPA backed
off from treating the Superfund as a continuing source of funds for the
right-to-know program, in return for a one-time congressional approval for
transfer of Superfund monies for the first year of EPCRA's operation in
1987.[258]

Funding continues to be a persistent problem for states and local
governments in administering the emergency planning and response activities
of EPCRA.[259] Fire departments and other emergency responders have long
complained that they lack the training and equipment for emergency response
and that this jeopardizes the safety and health of the public, the workers
at the facilities, and the emergency responders.[260] LEPCs and fire
departments particularly lack financial support, both from the federal
government and from their own states.[261]

Lack of funding has had a significant effect on the willingness and ability
of states to engage in outreach efforts to help the public to use and
understand the TRI data.[262] Neither the EPA nor Congress has been
supportive of direct funding to state and local governments to carry out
their EPCRA responsibilities.[263] LEPCs believe that both federal and
state assistance is inadequate.

The absence of federal efforts to fund the states in carrying out EPCRA
responsibilities contrasts with federal funding initiatives for other
important federal pollution control legislation which mandates state
participation.[264] EPCRA authorized no more than "training grants" to the
states, which were suspended by the Reagan Administration in 1988.[265] The
EPA initially proposed sharing the fines it received from enforcing EPCRA,
but it probably lacked the authority to do so and did not follow
through.[266]

President Reagan signed EPCRA into law. His last budget before leaving
office proposed $4.9 billion for the EPA. The EPCRA program was proposed to
receive only $21 million of that amount.[267] The EPA's actual spending to
carry out its EPCRA responsibilities have been relatively modest ever
since.[268] Environmentalists have long complained that EPCRA has not been
adequately funded by the federal government.[269]

2. State and Local Funding

States as well have had problems funding EPCRA responsibilities. At least
thirty-two states provide no funding to local communities for LEPC
activities, and the emergency response planners in these places often must
rely upon donations of equipment to do their work.[270] Only slightly more
than half the states have reported legislative appropriations for their
SERCs.[271]

The funding that the states do provide is fragile. For example, California,
which comprises one-fifth of the nation's population and was one of the
first states with right-to-know legislation that preceded the federal
law,[272] had funding for its right-to-know program threatened by a poor
economy and budget shortfall.[273] Several states, such as Missouri, where
legislative appropriations have not been adequate to administer
right-to-know legislation, have turned to imposing new industry fees to
support EPCRA activities.[274]

E. Enforcement Nothing to Fear

EPCRA has not given rise to a great wave of government and citizen
enforcement and litigation. What has happened is that there is more to fear
from noncompliance than enforcement and subsequent substantial punitive
results.

1. Noncompliance

The EPA has characterized the TRI, which annually compiles information on
the release of toxic chemicals by manufacturing facilities, as one of the
"cornerstones" of EPCRA.[275] If this is true, that cornerstone is somewhat
cracked.

Significant TRI reporting undercompliance has continually plagued EPCRA
from its inception. The EPA revealed that of the nearly 30,000 companies it
believed were subject to the TRI reporting in 1987, the first year for
EPCRA reporting, more than one in three companies, or around 10,000, failed
to report.[276] The percentage of facilities required to report under the
TRI program, but which have not reported, has consistently hovered around
the thirty percent range ever since.[277] Almost four years after the
passage of EPCRA, the EPA admitted enforcement was a problem for the
TRI.[278]

The quantity of data lost due to nonreporting is unknown but could be
substantial, with one estimate speculating that in TRI reporting's first
year, up to ninety-five percent of the total emissions escaped
reporting.[279] In some manufacturing sectors, compliance appears to be
particularly bad.[280] The rate of noncompliance is worse in some states
than in others.[281]

Undercompliance also afflicted other portions of EPCRA. The law required
communities, as represented by their LEPCs, to submit emergency response
plans by October 17, 1988.[282] About forty percent of 3808 LEPCs required
to submit these plans failed to meet this deadline, with great variation in
compliance across the nation for better or worse.[283]

The interest groups who have been concerned about EPCRA undercompliance
have primarily blamed the EPA for the problem. Congress and the
environmental community were among the first to show concern and find
reasons for low rates of industry, state and local compliance.[284] They
placed a substantial part of the blame for inadequate local emergency
planning compliance on the EPA's conflicting policy position: on the one
hand, that the states bear primary responsibility for enforcing this area
of the legislation, and on the other hand, refusing to provide adequate
funds to the states and local governments for carrying out their emergency
planning duties.[285] The EPA's implementation and enforcement of toxic
chemical release reporting has been faulted by critics as inadequately
funded.[286]

The most complete and convincing assessment of underreporting can be found
in a 1990 General Accounting Office (GAO) study which focused upon
significant problems in the EPA's enforcement of the TRI program.[287] The
GAO regarded most non-reporting as unintentional and concentrated among
small and medium size manufacturing facilities who were unaware of the
reporting requirement.[288]

However, the GAO criticized the EPA for inadequate enforce ment efforts
concerning the TRI non-reporting and found them partly to blame for this
problem.[289] The GAO faulted the EPA for its inefficient strategies to
identify non-reporters.[290] The GAO contended that the EPA did not screen
facilities before undertaking inspections and that the failure to do so led
to noncompliance.[291] The GAO agreed with the EPA's concern over the
failure of EPCRA to grant it explicit authority to inspect facilities for
compliance,[292] unlike other federal pollution control statutes.[293]

The GAO found the EPA slow to take enforcement action even after conducting
inspections and finding facilities were not reporting the TRI
releases.[294] Moreover, the GAO noted that the EPA was slow in resolving
the few complaints it did initiate.[295] The GAO determined that the EPA's
delays in issuing civil complaints were key reasons why so few enforcement
cases were resolved.[296] The GAO stated that delays in the EPA's
settlement process also contributed to a backlog of enforcement cases.[297]

The GAO not only found fault with the EPA's enforcement against
non-reporters, but also with the EPA's failure to undertake enforcement
against late reporters of emission data, which numbered in the
thousands.[298] At the time of the GAO report, the EPA simply had not
devised a policy for taking enforcement action against late reporters. It
is evident that the EPA dedicated scant resources to the early enforcement
of the TRI reporting, providing only two full-time staff members for this
purpose in each of its regions.[299]

Government enforcement of environmental laws requires the ability to
investigate, and this, in turn, is dependent upon adequate inspection
authority. The EPA very early on conceded this to be a hole in EPCRA
enforcement capability because the legislation does not expressly authorize
either the EPA or the states to enter and inspect facilities that are
suspected to be out of compliance with the law's reporting
requirements.[300] The EPA believed that it had strong implicit inspection
authority under the toxic chemical release reporting provision of section
313 because the reports were sent directly to the EPA.[301] However, for
this provision and the other EPCRA reporting requirements, the EPA
indicated that it might have to rely upon other federal laws to conduct
inspections.[302] It indicated that information gathered by states under
their own laws could be used in an EPA enforcement action under sections
311 and 312 for hazardous chemical reporting and that close cooperation
between the states and the EPA was needed to accomplish this.[303]

2. EPA Judicial and Administrative Enforcement

Fear over frequent federal enforcement and heavy judicial and
administrative penalties so far has not turned into reality.[304] When
compared with the scale and penalties associated with federal enforcement
of other environmental laws, EPCRA has a long way to go.

The first TRI reports were due on July 1, 1987. By this date 19,278
manufacturing facilities submitted 74,152 individual chemical reports.[305]
Nearly a year and half later the EPA issued its first complaints for
failures to submit toxic release information against a mere twenty-five
companies,[306] a seemingly inconsequential number given the huge number of
facilities covered by EPCRA. This was an unimpressive first effort by the
EPA at enforcement.

The EPA estimates that ninety-five percent of its enforcement actions under
all environmental laws result in settlements.[307] EPCRA enforcement
appears to follow this overwhelming tendency toward settlement.[308] EPCRA
violators are inclined to settle because there is little incentive for them
to litigate: the costs of furnishing the required reports and notifications
are relatively low compared with potential penalty assessments.[309] The
EPA has shown an increasing tendency to accept settlements that allow
companies to undertake pollution control measures in lieu of hefty
fines.[310]

Federal enforcement of EPCRA has covered all the reporting
requirements.[311] The typical EPCRA penalty ranges from several thousand
to several hundreds of thousands of dollars.[312] EPCRA follows the EPA
pattern for other federal environmental laws where most enforcement is via
administrative action rather than criminal or civil judicial actions.[313]
The EPA acknowledges that a penalty is likely to be higher in a judicial
case than in an administrative case.[314]

EPCRA is not only an environmental law which the EPA can enforce but it
also can be and is used by the EPA as a tool to enforce other federal
environmental laws. The TRI has been used by the EPA as one of the main
tools to spot violators of the hazardous waste dumping requirements of the
Resource Conservation and Recovery Act.[315] The EPA has announced that it
will use the TRI as an investigatory instrument, taking information from
the inventory, along with its other databases, to target hazardous waste
sites for inspections.[316]

Standing alone, some of the federal enforcement statistics for EPCRA would
seem at first glance to be impressive. The EPA has so far tabulated
enforcement statistics for EPCRA's TRI program from calendar year 1988, the
baseline for enforcement numbers, to 1993.[317] During this period, the EPA
issued 832 complaints for TRI violations, almost all for non-reporting,
undertook 4064 inspections and proposed penalties in excess of $40
million.[318] There are examples of significant EPA monetary settlements of
EPCRA actions.[319] The EPA has consistently pursued some degree of
monetary penalties for EPCRA violations.[320] According to the EPA, EPCRA's
TRI program is the "largest regulatory net ever cast."[321]

Despite the fact that EPCRA's coverage extends more widely than other
environmental laws,[322] its enforcement is minuscule compared to theirs.
EPCRA enforcement, measured in terms of the collection of penalties and
fines, constitutes less than one percent of total EPA enforcement of its
various environmental statutes.[323] In 1994, the EPA collected a record
$165.2 million in fines, $128.4 million in civil penalties and $36.8 in
criminal fines for all the environmental statutes it enforces.[324] EPCRA
fines reached a record year in 1994 as well, with the EPA announcing $26
million in proposed fines and $10 million in collected fines.[325]

However, the typical EPCRA penalty, which ranges from several thousand to
several hundred thousand dollars, is low compared to the multi-million
dollar amounts which occasionally occur with other federal environmental
laws.[326] EPCRA settlements pale in comparison with those achieved under
other federal environmental laws.[327] EPCRA enforcement actions and
penalty collections by the EPA, while seemingly significant in themselves,
appear to make up only a small portion of total EPA enforcement and
penalties.[328] Proposed penalties of the kind the EPA touts for EPCRA can
be mis leading because the EPA has been criticized for actually settling
cases for low amounts.[329] Moreover, though the EPA has announced
significant settlements,[330] it reportedly has a checkered record in
pursuing and collecting the penalties agreed upon in settlements.[331]

The EPA proclaimed soon after EPCRA's enactment that enforcement actions
should be aimed primarily at larger companies because they present the
greatest threat to public health.[332] They also present the greatest
sources for large penalties. Reports of EPCRA enforcement actions do not
reveal that the EPA actually followed up on a policy which targeted larger
companies.

The EPA's enforcement of EPCRA has steadily improved during the Clinton
Administration. In mid-1993, the EPA announced the wholesale issuance of
administrative actions against thirty-seven companies for alleged
non-reporting of TRI data, with nearly $2.8 million in potential
fines.[333]

The Clinton Administration contends that resources in the EPA have been
shifted over the last several years toward beefing up investigative staff
for discovering and prosecuting environmental crimes like non-reporting and
false reporting under federal laws.[334] Nevertheless, criminal enforcement
of EPCRA is monumentally unimpressive. By late 1994, the federal government
secured only one criminal prosecution under EPCRA.[335]

The EPA enforcement of EPCRA has a long way to go for the "largest
regulatory net ever cast"[336] to catch the big fish caught by other
environmental laws. In sum, while the EPA's EPCRA regulatory net may be
wide, it appears not to be cast out often enough to make any significant
catches.

3. State EPCRA Enforcement

With the exception of toxic chemical release reporting under section 313,
most of EPCRA's mandates are supposed to be carried out by states and
localities. Despite this fact, EPCRA does not mirror other federal laws in
which the vast majority of environmental enforcement actions and highest
total of penalty collections are on the state level rather than the federal
level.[337] The secondary role that states play in EPCRA enforcement
compared to the federal government is opposite the usual primary
enforcement role they play for other environmental laws where
responsibilities are delegated to them.[338]

States have shown forbearance in enforcing community right-to-know and
pollution prevention legislation.[339] States may bring citizen suits
against EPCRA violators but these actions appear rare.[340] Most states
have come to rely upon the EPA to handle enforcement of the key TRI
program.[341] Only thirteen states have statutory authority to take
enforcement action against companies that do not file TRI reports; and
generally, states with enforcement authority fail to exercise it.[342] The
EPA acknowledges that state and local governments can bring enforcement
actions against companies that do not comply with the TRI reporting
requirement law, but they usually fail to do so.[343] In fact, the states
have begged the EPA to take on this responsibility.[344]

The EPA does not generally have high regard for state enforcement of
environmental programs.[345] In EPCRA's early days, the EPA declared that
the development of working relationships between the EPA and the state
emergency response commissions were central to EPCRA enforcement.[346]
However, the EPA has not appeared to have gone much further than merely
stating this recognition.

Implementation and enforcement of EPCRA by the states is dependent upon, in
large part, the states' desires and abilities to fund their EPCRA
responsibilities. Budget-cutting by state governments across the nation
calls into question the prospect of effective and sustained state
enforcement of EPCRA.[347] In sum, facilities do not have to generally fear
state enforcement of EPCRA.

4. Toxic Torts and Citizen Suit Enforcement of EPCRA

Citizen suits did not become the significant EPCRA enforcement mechanism
that industry feared,[348] nor has the legislation come to be an aid to
toxic tort litigation. Most of the modest number of citizen suits have been
brought by relatively small environmental organizations.

The OMB Watch, the nation's only public interest group that principally
focuses on EPCRA, predicted during the early stages of the law that
community and environmental groups were not likely to engage in a great
deal of citizen suits.[349] It recommended that citizen suit litigation be
used selectively to set precedents in key areas.[350] This has not in fact
occurred.

The best known national environmental groups have not extensively relied
upon EPCRA citizen suit enforcement. An overwhelming number of citizen
suits have been undertaken by lesser-known national environmental
organizations and regional groups. Environmental organizations reported to
have instituted citizen suits include the Atlantic States Legal Foundation
(ASLF) located in Buffalo, New York, Environmental Action and Trial Lawyers
for Public Justice headquartered in Washington, D.C., New Jersey Public
Interest Research Group, Citizens for a Better Environment in Wisconsin and
Illinois, the Ecology Center of Michigan, and the Delaware Valley Toxic
Coalition of Philadelphia.[351] Few citizen suits have been brought by
individuals.[352]

The first citizen suit against a corporate violator was filed in July 1990
by the ASLF.[353] Very little reported case law has been generated by
EPCRA.[354] In general the sparse EPCRA case law reflects the small degree
of enforcement by government and citizens alike. Most of the case law has
resulted from the citizen suits and the ASLF has initiated most of the
citizen suits.[355] The most active federal forum for citizen suits and all
other EPCRA litigation has been the Western District of New York—possibly
due to the Buffalo-based ASLF's location in this district.

The ASLF has achieved notable settlements and awards.[356] Its victories
include not only monetary penalties, but also court orders and settlement
agreements which creatively require facilities to gather and report
information over and above the minimum requirements of the statute and to
contribute money, property or services to environmentally beneficial
services, such as environmental groups or state and local bodies
administering EPCRA.[357] But EPCRA citizen suit settlements and awards of
the ASLF, or anyone else, are far below the stratospheric level achieved in
citizen suits brought under other environmental laws.[358]

V. FEAR OF EMBARASSMENT

Only a few industry members anticipated what they should have feared most
about EPCRA. This was the Jeffersonian ideal of the power of information in
democracy.[359] EPCRA started out as an obscure, minor environmental law.
However, the TRI attracted much attention. The EPA and citizen groups, in
their efforts to quell toxic emissions, have used information that the TRI
reveals as a potent weapon.[360]

The TRI has spawned extensive grassroots agitation, numerous governmental
and environmental organization reports, significant regulatory and
legislative actions, major industry initiatives, and wider public
consciousness about massive toxic releases and the need to reduce them. The
TRI confirms the observation that more information on an important public
issue tends to lead to public pressure which can lead to reform.[361] One
commentator, referring to the TRI, stated it amounted to "regulation by
information."[362] Another stated, perhaps more cleverly, that the TRI data
has lead to "regulation by embarrassment."[363]

A. The First Shocking TRI Data

Every year the EPA issues a thick national report which compiles and
summarizes the TRI data which it receives from manufacturers.[364] The
report analyzes which states and companies are releasing and transferring
chemicals and the amounts and types of releases and transfers. The report
also examines information on the prevention and management of toxic
chemicals in waste and compares current data on toxic chemical releases and
transfers with similar data from previous years.

The EPA released its first report in 1989. This report reviewed 1987, the
first calendar year of reporting under the TRI.[365] Prior to the EPA's
first report, only a few environmentalists expected significant or
revolutionary implications for EPCRA.[366] A few industry members thought
that EPCRA could become a public relations nightmare and advised
manufacturers to gear up for damage control and put a good face on bad
news.[367] Those who expected the TRI data to have a stunning effect turned
out to be oracles.

The country was shocked when the first national report revealed that
manufacturers released more than twenty billion pounds of toxic chemicals
into the environment in 1987.[368] The EPA announced that these results
were "startling"[369] and "far higher than we thought was going to
occur."[370] One of the principal authors of EPCRA, Senator Frank
Lautenberg, Democrat from New Jersey, declared that the data was
"staggering"[371] and showed that "we were assaulting the environment with
toxic emissions into the air, water and ground."[372]

The first national report revealed eye-opening data on the toxic releases
and transfers into the air, land and water,[373] the top releasing
states,[374] the substances,[375] and the industry groups.[376] In
subsequent national reports, the EPA made it a practice to list the top
releasing companies and facilities, disclosing huge releases and transfers
for individual plants[377] and parent companies.[378] These reports
continued to show enormous toxic releases, transfers, and waste
generation.[379]

A variety of groups have used the TRI data extensively. They can be roughly
divided into environmental and citizen organizations and activists,
governmental agencies and legislative bodies, the press, and industry. The
TRI data has had a profound effect on all these groups.

B. Environmental and Citizen Organizations and Activists

The TRI data is relatively easy to obtain and use. While the facility
preparing a TRI form is not required to provide a copy to a member of the
public, states and the EPA, upon request, must make the TRI data release
information available to the public.[380] The TRI data is accessible to the
public on a national computerized database, as well as by other means.[381]
While relatively few individuals have utilized EPCRA, environmental and
public interest organizations use the law extensively.[382]

Environmental and public interest groups often perform the role of proxies
for the environmental concerns of the public.[383] Environmental
organizations around the nation have formed a coalition based upon the
right-to-know law and, in the spirit of the legislation, are connected via
a computer network.[384] These groups have become some of the most prolific
users of TRI data.[385] Environmental and public interest organizations
have produced scores of secondary reports by using the TRI data. This data
is directed towards educating the public and policy makers about toxic
pollution issues and pressuring industry to reduce the generation of toxic
substances.[386] These reports have covered local, state,[387]
regional[388], national[389] and international[390] settings, and
polluters.

Often following on the heels of the EPA's annual national TRI reports,
environmental organizations have produced reports publicizing the names of
top polluting facilities, industries, chemicals, and states in an effort to
invite public and regulatory pressure for toxic substance reductions.[391]
Some of these public interest reports have questioned the EPA and industry
claims of concern and success for pollution prevention.[392] Reports using
TRI data have been used to address one of the newest areas of environmental
concern, environmental justice, which is concerned with the reputedly
dispropor tionate burden for environmental and public health impacts borne
by low income and minority communities.[393]

One of the most important uses of EPCRA data by grass roots citizen and
environmental groups has been to induce or compel companies and
governmental bodies to mitigate or eliminate the generation, release, or
impact of toxic substances. Environmental organizations have organized
campaigns to publicize companies' TRI chemical releases.

EPCRA helped a citizen group in California convince IBM to phase out use of
ozone depleting CFCs; was combined by a group of activists with two
progressive state right-to-know laws to combat toxic exposure in Arcata;
helped citizens in Richmond to demand that companies develop chemical
accident prevention plans; empowered a citizens group in San Diego to
advance a community planning and economic development proposal for land-use
planning; and, in Contra Costa County, helped citizens convince the state
to affirm local committees' right to obtain chemical hazard information for
accident prevention.[394] In Ohio, the TRI data provided the weapon for a
citizen group from the town of Lima to obtain funding for the first state
airborne toxic substances monitoring project; helped an Akron group to
obtain BF Goodrich's commitment to a seventy percent reduction in toxic
airborne emissions; and, in Cuyahoga County, resulted in companies turning
to less dangerous chemicals to reduce hazards.[395]

In Texas, TRI data was used by a hunger striker to spotlight a major
polluter and win recognition of new pollution concerns. EPCRA data was the
basis for plume mapping that revealed a serious ammonia release danger in
Cloverleaf, Texas.[396] A Berlin, New Jersey citizen group used the TRI
data to induce a local company to adopt a chemical hazard accident
plan.[397] In Asheville, North Carolina, the TRI data assisted in obtaining
funding for a water treatment plant, and statewide data spurred the passage
of airborne toxic substances legislation.[398] Similarly, the TRI data for
Louisiana facilitated the passage of a bill to address previously
unregulated airborne toxic substances emissions.[399]

In Massachusetts, activists used the TRI data to win a pledge from defense
contractor Raytheon to replace ozone depleting chemicals with safer
substitutes, and the statewide data provided ammunition for
environmentalists in the successful effort to secure the enactment of a
far-reaching state toxic substances reduction law.[400] In Oregon, the TRI
data was used by environmentalists to spur the enactment of a strong toxic
reduction statute.[401] In New York City, the TRI data helped residents of
a neighborhood to win a twelve-year battle for cleaner air, while citizen
groups in the state have successfully utilized citizen suits to enforce
compliance with the TRI reporting.[402] Labor union and community groups in
Northfield, Minnesota, won a reduction pledge from a local company for
worker and community exposure to methylene chloride.[403] In Henderson,
Kentucky, citizens used a trade secret challenge involving the TRI data to
highlight important community environmental issues.[404]

Environmental organizations have organized campaigns to publicize
companies' releases of TRI chemicals.[405] The TRI data, as well as other
EPCRA information, is the basis for "good neighbor" agreements which some
environmental organizations have urged citizen groups to negotiate with
local facilities for the purpose of reducing or eliminating toxic substance
generation and hazardous chemical risks to plant employees and
communities.[406]

C. The Press and TRI Information

The press is a major user of the TRI data and has used it to provide
reports about the status of toxic pollution nationwide.[407] Press stories
come in two forms: overviews of the TRI data after its yearly release, or
in-depth analysis of specific locations or companies.[408]

The very first EPA national annual report on the TRI data attracted
national press attention, beginning with a bang in 1989 when the widely
distributed national newspaper, USA Today, used the 1987 calendar year data
freshly released by the EPA for a special three-day series about toxic
pollution that reached two million daily readers.[409] The first inventory
results also received national television coverage.[410] Media stories
based upon annual reports on the TRI data published by the EPA and the
states or based on studies and reports issued by environmental
organizations for advocacy use have now become a yearly press ritual.[411]

The TRI, a computer database, has contributed to making environmental
journalism more mature and responsible.[412] The TRI is part of the advent
of computer assisted reporting which has enabled environmental reporters to
go far in furnishing in-depth information to the public.[413] Journalists
have not been entirely independent in using or accessing the TRI data.[414]
They often depend upon citizen and environmental organizations as a source
for acquiring and interpreting the TRI data.[415] The stream of information
on toxic chemicals is particularly helpful in providing continuing
education for reporters, and this in turn makes them more responsible to
their audiences.[416] Newspapers and broadcast media have based many
investigative stories on the TRI data.[417] This data has provided
journalism with timely information, a meaningful context to evaluate toxic
pollution, an understanding of tools for illustrating chemical hazards, and
a foundation for communication with local industry officials and plant
representatives.[418]

D. Impact on Legislation and Regulation

EPCRA has been said to reveal the success or failure of environmental laws
and regulations.[419] This has included holding a mirror up to EPCRA
itself.

Environmentalists contend that despite the original TRI list of over 300
plus chemicals covered by EPRCA, approximately ninety-five percent of all
toxic chemical releases still escaped reporting.[420] Environmentalists
note that many substances listed as toxic or hazardous under other federal
environmental laws, including the Clean Water Act, Safe Drinking Water Act,
and RCRA, were not covered by EPCRA.[421] Conversely, the release of the
TRI data made it apparent that large quantities of toxic chemicals put into
the environment were not being controlled by federal laws meant to regulate
toxic pollution. Most of the TRI releases are into the air, but as of 1992
only two were regulated as toxic air pollutants by the Clean Air Act nearly
twenty years after that statute was enacted.[422]

The TRI data has been credited with stimulating actual and proposed federal
and state legislation and regulation for more stringent pollution
monitoring, control and prevention.[423] EPCRA itself was amended by
Congress with the Pollution Prevention Act of 1990 to include new data
elements on source reduction and recycling to the TRI, starting with the
1991 calendar year.[424] This was the first major expansion of EPCRA. It
was followed by other significant expansions of the law's coverage. The
second such expansion occurred with President Clinton's 1993 executive
order requiring federal facilities to submit the TRI reports,[425] which
environmental organizations had persistently sought.[426]

The third expansion came in late 1994 with another Clinton Administration
EPA rule,[427] which added nearly 286 more chemicals to the TRI list for
industry reporting, nearly doubling the number of substances manufacturers
and users must report in their annual inventory reports.[428] This
substantial broadening of coverage of the TRI reporting had long been urged
by environmental groups[429] and was depicted by the Clinton Administration
EPA as the first of three phases for expanding the TRI even more.[430]
Nearly half of the new chemicals added to the list were pesticides that
were regulated under the federal pesticide law, FIFRA,[431] but that had
not been placed on the original TRI list.[432] While expansions of EPRCA
are significant, even more extensive and rigorous changes have been
occasionally proposed in Congress that have served to stimulate changes
which eventually did in fact occur.[433]

The United States TRI is the first substantial mandated environmental
inventory to be introduced by a national government. This pioneer pollutant
inventory is being copied by other countries. In its home country it has
been proposed to be used or has been actually used for international
applications.

Other countries with established or pending inventories include Australia,
the Netherlands, Norway, Canada and the United Kingdom. The Organization
for Economic Co-operation and Development (OECD), as a follow up to the
1992 United Nations Conference in Rio, is developing guidelines on
establishing inventories for the nations of the world.[434] The United
States EPA has ordered com panies that operate maquilladora factories
inside Mexico to report their toxic chemical pollution.[435] The TRI has
come to be seen as a model by the United States and other nations to
monitor global climate warming gases.[436]

EPCRA in general, and the TRI in particular, have been catalysts and the
basis for a variety of significant legislative, administrative, and
regulatory initiatives by the states and the federal government. Chemical
release data compiled by the EPA as part of its TRI inventory has been the
driving force behind laws, proposed legislation, and rule-making efforts on
the federal level.[437]

The enactment of the Pollution Prevention Act of 1990 has already been
mentioned. However, the Clean Air Act Amendments of 1990[438] are
collectively the single most important federal law influenced by the TRI.
The TRI data showing massive releases of toxic chemicals in the atmosphere
confirmed the woeful inadequacy of federal control of toxic air pollution.
The first annual TRI report covered over 300 toxic chemicals for 1987,
providing a sharp contrast with the fact that by this time the EPA had used
its authority under the Clean Air Act[439] to regulate only seven air
toxics in nineteen years.[440] The TRI data showed nearly 2.7 billion
pounds of toxic air releases, with nearly eighty-eight percent, or 2.3
billion pounds coming from twenty-five chemicals. Only one chemical
regulated by the EPA as a toxic air substance, benzene, was among the top
twenty-five, and it ranked twenty-first.[441] The 1987 TRI data revealed
air releases totaling 361.5 million pounds nationwide for eleven
cancer-causing air pollutants which the EPA had promised to regulate since
1984, but failed to do so.[442] The Clean Air Act Amendments of 1990
grabbed over 170 chemicals from the TRI list and directed the EPA to
regulate them as air toxics.[443]

Federal farm legislation enacted in 1990 adopted a public right-to-know
provision for agricultural pesticide use.[444] Federal rule-making and
proposed legislation linked to right-to-know has been undertaken for the
Clean Air Act, Clean Water Act, CERCLA, Safe Drinking Water Act, and
RCRA.[445] Federal agencies, particularly the EPA, have used the TRI data
to produce reports, guides and reviews focusing on specific aspects of
toxic releases and risks.[446] The TRI data is extensively used by EPA
headquarters and regional offices, often in conjunction with other EPA
databases, in the initiation of new programs and the implementation of
existing ones concerned with prevention initiatives, compliance reviews,
inspection targeting, enforcement actions, and risk screening.[447]

The TRI data forms the backbone of the EPA's principal pollution prevention
initiative which was mounted in 1991 and labeled the "33/50 Program,"[448]
so-called because it asks companies to voluntarily reduce emissions of
seventeen high-priority TRI chemicals thirty-three percent by 1992 and
fifty percent by 1995.[449] The 33/50 program appears to have been fostered
by the Bush Adminis tration's EPA's embarrassment following the release of
the second TRI in 1990. It made public the massive releases of toxic
chemicals that went un- or underregulated. The 33/50 program fit perfectly
with the Bush Administration's philosophy of substituting corporate
volunteerism for regulation as the preferred means to achieve pollution
reductions.[450]

The Clinton Administration's EPA appears to have enthusias tically embraced
the philosophy of the 33/50 program[451] and claims the program has
achieved significant and admirable progress.[452] Environmental
organizations, however, contend the program is a sham whose design is badly
flawed, whose reported results are suspect, and whose existence was created
principally for the purpose of avoiding the use of tougher, more effective
mandatory pollution prevention regulation.[453]

Like the federal government, state governments have made worthwhile use of
the TRI data. States use the TRI data to produce reports and reviews
focusing on specific aspects of toxic releases and risks, and many states
maintain their own databases and publish hard copy analyses of the releases
within their borders.[454] The TRI program has had a significant impact in
spurring state pollution control and prevention legislation, strengthening
existing programs, and aiding in the development of new regulatory and
program initiatives. At least fifteen states have enacted pollution
prevention and reduction laws,[455] some of them roused into action through
the efforts of public interest groups using the TRI data to influence
legislative action.[456]

For existing state pollution control and prevention programs, the TRI data
has been used in improving and toughening permit programs and for enforcing
other major environmental programs.[457] The TRI has been applied in Ohio
to determine if additional pollutants should be included in water pollution
discharge permits; in Connecticut to decide if additional controls are
necessary for discharge permits; and in Wisconsin as part of the
information considered in facility audits and permits for water pollution
discharges.[458]

The TRI is used as an enforcement tool by helping to identify pollution
control targets that were not apparent through conventional emissions
information.[459] It has been applied to cross-check reporting facilities
with other environmental databases to select facilities for inspections and
compliance under other environmental statutes.[460]

In addition to strengthening existing regulations, the TRI data has been
used to develop and inspire a new wave of environmental regulation and
improvement programs. At least six states have used TRI data for
environmental justice projects.[461] States have used TRI data for
identifying sources for further air toxics regulations, veri fying emission
inventory data from other programs, determining point source and fugitive
air emissions for target chemicals, and prioritizing air toxics and ground
water quality activities.[462] State agencies have used the TRI data to
screen for potential health and environmental risks posed by toxic chemical
releases and transfers.[463] They have also used the TRI to target
technical assistance to TRI facilities.[464] The federal TRI program has
encouraged states to undertake additional right-to-know programs and
initiatives meant to alert the public about toxic releases and transfers
within their borders.[465]

E. Effect on Industry

The TRI is not just a reporting measure, but it is also a revelation of the
extent of the toxics problem. It has become "probably the most significant
measure of industry's overall environmental performance and progress in
reducing wastes and emissions" as well as an important indicator of the
responsiveness of companies to environ mental and human health issues.[466]
In many cases, the TRI shows the astonishing extent to which industries use
our environment as a dumping ground.[467]

A major early fear of some in industry was that once released the TRI data
would lead to a public outcry and this would eventually lead to greater
regulation. The law was called a "real sleeper"[468] which could "haunt"
industries handling chemicals.[469] Soon after EPCRA was enacted, and
before the first TRI data would be publicly released, an official with the
Bush Administration EPA advised industry to conduct a public relations
campaign to convince the public about progress they have made and would
continue to make to reduce discharges.[470] The head of Du Pont offered
public relations as a tactic to "offer some assurance" to the public "that
the problem [was] not of crises proportion."[471]

The TRI has had several impacts on industry. Industry is one of the
largest, if the not the largest, user of the TRI database.[472] There is a
rising trend in major corporations of issuing environmental progress
reports, similar to stockholder reports, but focusing on pollution, to
counter adverse publicity that might be caused by their annual toxic
release data.[473] The most important impact is that public availability
and disclosure of inventory data has motivated industry to promise to meet
sharp pollution reduction goals in well-publicized campaigns. They have
done this to fend off public outcry and the implications which come from
it.[474]

From the very first year that the TRI data was released, 1989, the data has
been a significant prod to industry to cut back emissions. The current EPA
head says that it serves "as an eye opener to lots of CEOs" who find
themselves embarrassed by the bad publicity created by the findings of the
TRI reports.[475] Monsanto, for instance, was revealed by the first
inventory results to be a top air polluter.[476] As its vice-chairman
noted, "[w]e knew the numbers were high, and we knew the public wasn't
going to like it."[477] Thus, on the eve of the first national release of
the TRI data, Monsanto pledged to cut its releases of inventory chemicals
by ninety percent of its 1987 levels by 1992.[478]

The TRI has goaded industry groups to create new or improve existing
pollution prevention programs, many patterned after the EPA's 33/50
program, by using voluntary partnerships with federal, state, and local
governments.[479] In effect, the TRI has amounted to "regulation by
information" for industry.[480]

Perhaps the best known voluntary initiative is that launched in 1988 by the
Chemical Manufacturers Association (CMA) called "Responsible Care."[481]
The EPA's 33/50 program was patterned after Responsible Care.[482] The CMA
called Responsible Care the most ambitious and comprehensive environmental
improvement effort ever undertaken by industry and claimed all 184 of its
members had committed to it.[483] Among other things, the CMA promised to
go well beyond existing laws to reduce pollution and to fling open plant
gates to inform and conduct dialogues with the public.[484]

The head of CMA admitted "Responsible Care was launched for one basic
reason: the industry had no choice."[485] He noted that incidents like
Bhopal had plunged public trust of the chemical industry to "dismal
depths," with CMA's own surveys showing the public ranked the chemical
industry behind only the tobacco industry among the top threats to public
health and the environment.[486] Responsible Care is thus not voluntary
pollution reduction done for altruistic purposes, but is rather primarily
pre-emptive public relations seeking to avoid mandatory regulation which
the public might demand if chemical data was not interpreted in the manner
the chemical industry wished. In 1987, after the passage of EPCRA, a major
chemical company executive heading CMA's Title III committee urged chemical
companies to put the proper spin on the TRI data the first time it was to
be released to the nation to counter a "chemophobia" reaction from the
public that might lead to more broad-scale environmental regulation for
industry.[487]

It is apparent that public knowledge about the TRI emissions has led to
very real efforts at changes in industrial practices for the purpose of
reducing toxic releases and transfers.[488] Environmentalists, however, are
cynical about the motives behind efforts at cor porate volunteerism and the
effectiveness of results claimed by industry. Companies which make promises
to reduce pollution out of fear of bad publicity and harsher regulation are
not really acting voluntarily. They are capitulating to not just
regulation-by-information but to regulation-by-embarrassment.[489]

The CMA member companies constitute more than ninety per cent of United
States chemical company production and the chemical industry comprises by
far the largest industrial sector for TRI releases and transfers.[490] The
CMA claims reductions in toxic chemical releases from the chemical sector
reflected in the TRI data are real and attributes them to massive
investment in pollution control expenditures due to increased public
accountability imposed upon the industry by the TRI.[491]

Environmentalists have called reductions in the TRI releases and transfers,
claimed by the EPA and American industry, "phantom," contending that most
of the largest decreases in toxic emissions are the result of changes in
reporting requirements, analytic methods, and production volume, and not
from real pollution prevention or abatement.[492] Five years after its
celebrated pledge to cut by ninety percent its toxic releases to the air,
Monsanto claimed it achieved its goal. But a brief report from
environmental groups claimed that paper recalculations were the source of
some emission declines.[493] The Citizens Fund contacted fifty top waste
generating facilities in the chemical industry to gauge their progress in
preventing pollution.[494] The head of the group claimed that twelve of the
fifteen lowest ranking facilities were operated by CMA members and called
the Responsible Care campaign ineffective.[495] Union Carbide, a CMA
member, has claimed it searched for and found ways to reduce its TRI
releases; but, cross-checking by environmental groups of the company's
releases reported under the nation's hazardous waste law, RCRA, make this
claim suspect.[496]

Part of the Responsible Care campaign was a pledge that chemical companies
would open up the plant gates and answer citizen questions about toxic
chemical use and accident prevention. A study by another environmental
group called this pledge into question by showing plant doors in many
instances remain closed.[497]

Many CMA members may very well be sincere in their commit ment toward the
Responsible Care campaign. It is clear that this trade association cannot
guarantee every company in the chemical industry will keep the pledge of
openness to the public. It is likewise clear that the CMA cannot keep
individual members from going to substantial lengths to subvert this
pledge. For example, Ashland Oil, which claims to subscribe to the
principles of Responsible Care, has been accused of surpressing publication
of a year-long investigation of serious, long-standing pollution at one of
the company's facilities by the official magazine of the American Chemical
Society, of which Ashland is a member.[498]

VI. CONCLUSION

Obscure as it was, there were neither great expectations nor great fears
about EPCRA when it was enacted. Most of the relatively small concerns
about the legislation have not been realized. The few who did fear the
power of information fostered by EPCRA, and particularly the Toxic Release
Inventory, proved to be right. EPCRA does not attract the same attention or
resources as more notable federal pollution laws, but it created a quiet
revolution with its effects on the public, regulators, legislators, press,
citizen groups, and public consciousness in relation to toxic chemicals and
the environment. The most important impact of EPCRA is that it has firmly
established and justified the principle that members of the public have a
right-to-know about emissions and their risks. The public's right-to-know
about toxics released into the environment is now widely accepted. The
pressure of public exposure on government and industrial performance has
been positive, leading to actual or promised environmental improvements
through voluntary cleaner production and pollution prevention initiatives,
even though this has avoided direct regulatory measures environmentalists
generally trust more.[499]

While the very real success of the toxic right-to-know provision of EPCRA
was not anticipated during the early stages of life for the program,
continued future success is by no means assured. The current Republican
Congress has made emasculating environmental and health and safety
regulation one of its premier goals in the name of regulatory reform, and
several bills meant to fulfill this purpose might end right-to-know as we
know it.[500] These proposals have both the intent and the effect of
subjecting governmental communication about chemical risks and exposure to
paralyzing review and delay.[501] These efforts reverse the momentum from
the public's right to know more about toxic substances to knowing less. The
chemical industry is in league with those in Congress who wish to roll back
the public right-to-know about toxics. Prior to the last election, when it
appeared that it would have to live with a robust and expanding TRI
program, the chemical industry tried to put the best face on the bad news
revealed in the TRI findings and gave the impression it wholeheartedly
embraced the program. This is no longer the case.

Two types of legislation have emerged which threaten the very successful
TRI program. The first is an indirect assault on the TRI. That is,
legislation which is a broad attempt at reducing and hampering all federal
regulation, and which happens to encompass and harm the TRI program in the
process. The other is the direct assault on the TRI, the legislation that
specifically intends to hurt the TRI program.

One kind of indirect assault which would have a profound effect on the TRI
is the regulatory moratorium legislation promised by the Republicans as
part of the Contract with America campaign. This effort started out as a
proposal for a harsh regulatory moratorium and turned into one for a more
modest opportunity for a legislative veto of federal regulation.

In February 1995, the House passed a one-year moratorium on virtually all
federal regulations retroactive to November 9, 1994, and sent the measure
to the Senate.[502] If this comprehensive moratorium had become law it
would have stalled or blocked the EPA's addition of 286 chemicals to the
TRI list. The Senate took a different approach, in late March, voting 100-0
to flatly reject a comprehensive moratorium and instead adopted a
congressional layover measure which used a 45-day time period during which
Congress could scuttle any new regulations.[503]

In a surprise move in early June 1995, the House took up and passed the
Senate bill but substituted the language of the comprehensive moratorium it
first wanted.[504] This was a political maneuver meant to lead to a
House-Senate conference in which the House proponents of the moratorium
hoped to prevail in a final bill adopting the moratorium instead of the
layover.[505] Senators Carl Levin (D-MI) and John Glenn (D-OH) have vowed
they will fight the regulatory moratorium and try to stop a House-Senate
conference on the subject with a procedural floor fight in the Senate.[506]

Another major indirect attack on the TRI found in the regulatory reform
legislation of the Contract with American agenda seeks to impose an
extensive process of cost-benefit analysis and risk assessment upon federal
regulation. The chief threat to the TRI is the risk assessment[507] measure
which would require that a risk assessment be taken before any federal
agency adopts a major health, safety or environmental regulation, and that
this assessment justify the regulatory action.

In March 1995, the United States House of Representatives passed the Risk
Assessment and Cost-Benefit Act of 1995.[508] The key Senate counterpart
for risk assessment legislation, the Comprehensive Regulatory Reform Act of
1995,[509] was introduced by Senator Dole, which is in most respects
similar to H.R. 9.[510] The House and Senate bills both would subject major
federal rules to a costly, time-consuming, possibly industry influenced
risk-assessment process, and easy legal challenges. This would clearly
hobble, if not altogether prevent, any meaningful future expansion of the
TRI.[511]

These two bills, S. 343 and H.R. 9, would require that any major federal
regulation, defined as one which would have an economic impact starting at
$50 million, would have to undergo the risk-assessment and cost-benefit
analysis. Fifty million dollars is a very low figure and would easily
ensure that any important federal regulation would be subject to the
process. The latest expansion of the TRI list, which doubled it, was
estimated to cost industry well over $50 million.[512] Critics complain
that subjecting all major new or existing regulations to a protracted risk
assessment and cost-benefit analysis process will eat up enormous resources
for federal agencies. In the case of the EPA, the constant study of risks,
costs and benefits would be at the expense of real pollution regulation and
prevention.[513]

The bills provide that once the federal agency has completed a risk study
it will be subjected to a peer review panel. Critics have called these "de
facto veto panels"[514] and even if the panels don't kill regulatory action
by an agency they might micromanage it into uselessness.[515] The bills
expressly do not exclude from the panels experts who might have financial
interests in the outcome of the review, including representatives or
employees of any industry which is to be subject to the proposed
regulation.[516] Moreover, a conflict of interest by members of review
panels need only be made known to the agency, not to the public, and the
peer review panel may proceed in secret.[517]

The bills contain sunset provisions which automatically call for the end of
any government program, like the TRI, if the EPA fails to complete a
lengthy cost-benefit finding that showed the program's costs are justified.
Critics claimed the sunset provision would consume enormous agency
resources and offer numerous new opportunities for legal challenges.[518]
Moreover, the sunset provisions provide opportunities for a hostile
administration to make regulatory programs disappear by stalling
review.[519]

The bills include petition and lookback provisions which allow numerous
opportunities for industries to make government agencies add new rules to a
review process or to undertake risk assessment or cost-benefit analysis for
existing rules.[520] These provisions give industry the power to
significantly slow down rule-making or force an agency to divert resources
from activities it really favors.[521] Critics contend that the measures
for petition/lookback reviews and sunset reviews in the end provide a "back
door route" to delay or kill rules either the federal agency or industry
dislikes.[522]

The bills contain broad judicial review that readily allow suits for
contentions of noncompliance with the law. Environmentalists maintain this
would allow industry to easily delay or stop regulations with lawsuits
which were groundless or based on minor errors, inviting excessive
litigation and flooding the courts as a result, all without leading to
improved EPA decision-making or better regula tions.[523] In sum,
environmentalists consider the risk assessment and cost-benefit bills to be
tantamount to "paralysis by analysis" which would delay or kill action on
important health, safety and environmental regulation.[524]

The key risk assessment and cost-benefit bills, in the form that they had
for most of their development, would clearly present new obstacles for the
EPA to overcome before it could list new chemicals or industries, add new
manufacturing industries, or require other kinds of chemical use
information.[525] However, the TRI program itself is not directly the
intended target of these bills, at least at first, since they cover nearly
all federal regulation and the TRI program would only be one of many
programs affected. The effect on the TRI, as well as other federal
regulatory programs, would mostly be in the future, arresting the
development of the program, not rolling it back.

All this changed as the Dole bill reached the Senate floor, at which time
the TRI was no longer a possible hapless victim of the cross-fire of
regulatory reform but an intended target where crippling, if not killing,
the program was the aim. In an effort to win over more votes from
Democratic senators to increase the chances of Senate approval of
regulatory reform and resist a potential Presi dential veto, Senator Dole
struck a compromise with Senator Bennett Johnston, a Democrat from
Louisiana.[526] Louisiana regularly ranks highest in releases of
toxics.[527] Johnston, who has been considered crucial to passage of the
legislation because he wished regulatory reform, is a leader and advocate
of risk assessment, and probably would bring several more Democratic
votes[528] as well as moderate Republicans.[529]

Johnston, long an ally of the chemical industry, at its urging inserted
into the compromise bill a provision to scale back the TRI program.[530]
The chemical industry is especially duplicitous in this matter in light of
its previous public pronouncements of support for the program. The
provision would nullify the addition of the 286 chemicals the EPA added to
the list in November 1994, which had nearly doubled the previous list of
330 chemicals. This special favor to the chemical industry provided by
Johnston was hidden in the compromise bill and has been criticized as a
"stealth attack" on the right-to-know law.[531] The Johnston measure would
require the EPA to provide risk assessment and cost-benefit analysis for
all the chemicals added to the TRI in November 1994 within six months of
the enactment of the regulatory reform bill, otherwise they would be
removed.[532]